Community and consent: Issues from and for deliberative democratic theory David Kahane Department of Philosophy University of Alberta Speaking notes please do not circulate or cite without permission Consent is a powerful theoretical and practical concept: it helps to Undergird the legitimacy of political sovereignties, and of claims to political representation; Explain the binding force of treaties and other agreements; Articulate an understanding of political autonomy and dignity: a political agent is one who can consent or withhold consent; Urge that the presumptive views of members of a community be checked against what people actually want and believe. A number of problems beset understandings of consent as punctual that is, as a decisive utterance or signal conferring legitimacy: in punctual accounts, We get a simplified agent (an autonomous, rational individual or a neatly bounded and constituted collective) meeting its pre-existing interests through agreement. We get a thin description of the epistemic conditions of authentic consent: an agent needs to be rational, informed, and perhaps sincere. But the punctuality of consent turns our eye away from the nuanced capacities and opportunities needed for meaningful consent; the webs of interlocution that set up consent; the social conditioning of preferences and interests that motivate consent; and so on. We get ambiguity about the object of consent: to what are parties agreeing? To what extent do they need to understand it in the same way, and how do we know whether they do? Ultimately, we get a picture of consent as binary you do or you don t rather than as a complex and ongoing negotiation of allegiance and legitimacy. So it seems clear that we need to situate consent (theoretically and practically) before we can treat it as meaningful, and before we can distinguish more from less compelling instances of consent. I ll urge that we situate consent in terms of the deliberation that precedes and follows it. Here I m drawing on theories of deliberative democracy which have complex roots in western philosophy, but are particularly indebted to the work of Jürgen Habermas, and of others who ve 1
drawn upon and messed with his work given concerns around his claims about reason and societal evolution, the openness of deliberation to intercultural and cross-cultural conversation, and the presumed boundaries of political deliberation. Let me point to five key deliberative democratic commitments: 1. Deliberative democrats criticize understandings of democracy as simply aggregating the interests or facilitating the bargaining of diverse individuals or groups. Instead, they insist on the extent to which democratic dialogue can transform the self-understandings of participants, their sense of their own and others interests, and thus the possible grounds for legitimate agreement. 2. Deliberative democrats want democratic outcomes to be based on a careful exchange of reasons on rational persuasion. Much of the ferment within deliberative democratic theory in the past decade has been over the nature of legitimate persuasion and good reasons, especially where participants in dialogue draw on very different cultural traditions, modes of rhetoric, languages, and knowledges. But amidst this ferment there s a continuing emphasis on legitimate collective decisions being based on exchanges of perspective that alter participants understandings of the issues, of the parties to the conversation, and of themselves. There s a continuing distinction between decisions based on reason-giving (understood more or less pluralistically) and those based on aggregation, bargaining, or force. 3. In emphasizing reason-giving as the source of legitimate decision, deliberative democrats look for procedural norms and mechanisms that can insulate political conversations from other influences: ways to equalize power, to ensure access by participants to necessary resources and training, to disallow threats in sum, to make sure that agreement is based on the persuasive power of things people say and do within the conversation itself. This isn t to say that bargaining or interest-aggregation are illegitimate: for these modes of decisionmaking to be legitimate, though, those affected must decide deliberatively when bargaining and interest-aggregation of particular kinds are the right modes of decision. 4. Deliberative democrats insist that deliberation goes all the way down. That s to say that while in a particular deliberation some things may be fixed the parameters of discussion, the parties at the table, the decision procedures in the broader democratic context, any norm or rule or boundary is open to challenge, and the response to this challenge must be deliberative. Indeed, even the decisions of properly constituted deliberative bodies are subject to challenge, so that democratic decision-making on an issue is never done, is always revisited. Another way of putting this is that deliberative democracy is recursive decisions are legitimate and binding not because of any single moment of agreement, but because of the endless succession of conversations and agreements that surround and support them. 5. Finally, deliberative democracy is egalitarian in orientation, in that all those affected by a decision should have a say in deliberations. This norm of inclusion will itself have to operate recursively a given deliberation begins with some determinate group discussing an issue, but the norm requires that anyone claiming an interest be given a hearing, that the representativeness of the group as a whole and of particular members be subject to deliberative challenge. So while collective deliberations can foster solidarities and common identities, the egalitarianism of deliberative democracy can t demand that a we exist prior to deliberation, or that membership in some we be a condition for entry into deliberation. Being affected is the ticket to entry, and here there s a decentered model of legitimacy and decision-making that challenges conventional models of sovereignty as consolidated authority. 2
OK, so that s deliberative democratic theory in a nutshell. How is consent situated in this picture of recursive democratic deliberation? Actual consent. The plainest instance of formal consent in democratic deliberation is at moments of collective decision, be these by consensus, voting, or some other method. Rather than being isolated acts of will, however, decisions are products of discursive will formation, and it s the conditions of will formation that give decisions their binding force. Tacit consent. Because of the radical openness of deliberative democratic procedures to dissent no norm or procedure is beyond challenge there s a sense in which participants are perpetually consenting to or withholding consent from elements of the process: the framing of issues, the rules of discourse, the parties around the table, and so on. While this consent is mainly tacit, the rules of the game are such that tacit consent is continually thematized and in play, which makes it more meaningful and legitimating than is typical in accounts of tacit agreement. Consent as subjective allegiance. This aspect of deliberative democratic theory is strikingly underdeveloped, but I d point to two aspects of the experience of deliberating that can change one s sense of oneself in community, and so one s subjective allegiances. First, deliberation brings you face to face with others, enhances your understanding of interlocutors, and shifts your sense of what unites and separates social groups. This can happen at the level of identities, as you move beyond stereotypes, expand your repertoire of examples from other social groups, and so gain a richer sense of who some they are: what they value and how they value it, how they express themselves, and so on. It can happen at the level of interests, as you enhance your sense of what different groups want and need, and how these interests might fit together. It can happen at the levels of affect and spirit as you develop friendships and affections and senses of commonality that uncover new possibilities for solidarity and common cause. And for each of these subjective experiences there can be elements of recognition: not only experiencing these things, but folding the experience back into discussion and having it mirrored by others. Second, deliberation concretely connects your agency with the fate of a larger group. Especially against a backdrop of anomie and civic apathy, participating in collective deliberation on an issue that matters and being able to influence collective decisions on that issue are powerful experiences. In addition to all the relational possibilities I ve just mentioned, there s a sense of efficacy, of having a say, of your views mattering to how a collective shapes its future. This sense of participation and of shared fate can be a powerful part of one s sense of subjective allegiance with a larger group. Talking about subjective allegiance in the context of deliberative democratic theory brings up a giant question, one that remains more easily hidden within liberal paradigms: what s the object of this subjective allegiance? The question is complicated, first of all, by the different modes of deliberation in a given political community deliberative democrats are interested in formal sites of political deliberation (like community meetings, royal commissions, parliaments, and so forth what Nancy Fraser calls strong publics ) and also in dialogue in civil society (discussions in a free press, diffuse and informal practices of justification and accountability what she calls weak publics ). Second, these diverse sites of deliberation aren t all situated in or definitive of a single community, and so there s no single, bounded we with which one identifies. Third, the sense of allegiance can be with individuals with whom one has deliberated, social groups, a whole political community, or with procedures 3
and institutions of deliberation that express procedural values (equality, inclusiveness, autonomy) that one affirms. So the object of subjective allegiance is underdetermined by deliberative democratic theory, though it s clear that the decentered nature of deliberation is going to complicate people s sense of their civic attachments, their commitment to various institutional orders, and their agency on a complicated terrain of decision-making and authority. That s consent as it gets situated by deliberative democratic theory. It s a much richer picture than that offered by punctual accounts, if also a vastly messier one. I do hold onto the hope that it offers the beginning of a more plausible and normatively satisfying account of political legitimacy and citizen allegiance. In the time remaining, let me sketch the array of questions that remain for a deliberative democratic account of consent, and then mention reasons why some might prefer to hang onto a story of political legitimacy based on punctual consent exercised by sovereign individuals and groups. First the questions and there are lots, since the description of deliberative democratic theory I ve provided so far is vague on all of the key points: 1. What sorts of deliberative procedures and mechanisms are best suited to enabling conversation and persuasion across deep cultural differences, especially once we recognize the bias that pervades many supposedly impartial political processes? 2. What sorts of decision procedures can establish the legitimacy of a particular deliberative outcome? A requirement of consensus seems most robust in this regard, but also massively impractical in most political situations. But short of consensus, and even given the safeguard of recursive deliberation following decisions, what kinds of voting, majority requirements, negotiation mechanisms, and so forth are required? 3. Insofar as formal political institutions involve representative rather than direct democracy, how can representatives whose perspectives are transformed by deliberation remain legitimate in the eyes of constituents who ve not shared in the transformation? Can the weak publics of civil society carry this weight? 4. I ve mentioned norms of equality and inclusivity, as well as strong and weak publics, all of which decenter the demos in deliberative theories. But this leaves completely open the constitutional, legal, and institutional structures called for by the ideal. Does the ideal involve sovereign states? Federal arrangements? With what sorts of divisions of power? What degree of solidity or fluidity to any given division of sovereignty and power? What institutional mediations should there be between the diffuse conversations of civil society and the presumably representative institutions with formal decision-making power? 5. A final giant question has to do with the collective identities that might actually be cultivated (and eroded) by a decentered deliberative democracy. On the one hand, many existing forms of political subjectivity are premised upon real or imagined sovereignties, seen as constituting a boundary between a we and a they. What would happen to these collective identities Albertan, Canadian, Mohawk, Metis if sovereignties and political exchanges were decentered to the extent envisioned by the deliberative democratic ideal? Some would no doubt persist and flourish, held in place by vibrant traditions, cultural practices and institutions. But others might shift or wane over the long term. On the other hand, to what 4
extent would the decentered public spheres contemplated by deliberative democrats shape new forms of political subjectivity? And would the intermeshing of older and newer political subjectivities in fact support and sustain democratic institutions? The questions are vast, and they get answered differently by different deliberative democrats. I do think, though, that there are paths forward, and that the complexity of the questions points not to a deficiency in the paradigm, but rather to the messiness of the political settings we inhabit. Let me point to broad ways in which deliberative democrats are equipped to address these questions: First, deliberative democratic theory offers critical standards against which to judge political claims and processes that seem problematic: we look at an element of our political landscape and ask whether it s the product of properly inclusive deliberation, or can be affirmed by those affected following inclusive deliberation. But we still start from where we are, with taken-for-granteds remaining taken-for-granted until there s reason to challenge them. And so we don t need a fully articulated picture of a democratic utopia; we need to scrutinize claims as they arise, and reform institutions as we can. The theory offers us both a general orientation and a set of specific tools for doing so. Second, deliberative democrats deny that we ll find neat, correct answers to any of the questions I ve canvassed. Solutions and agreements will always be provisional and partial, subject to continuing reassessment by democratic means. This recursiveness of deliberation, this contingency of outcomes, this contextuality of judgment, is central to the theory. Third, these questions needn t be answered de novo. There s an incredibly rich body of experimentation and experience around designing deliberative spaces where diverse affected parties can share perspectives and craft legitimate outcomes. Here I m thinking especially of the last thirty or so years of alternative dispute resolution, consensusbuilding, public dialogue projects, and so on. In the specific context of aboriginal/settler relations there s a corresponding richness of historical and contemporary cases and models. OK. I ve sketched a set of arguments around the value of a deliberative democratic approach to questions of political legitimacy, and pointed to a wide range of open questions faced by deliberative democratic theorists. I want to take a couple of minutes now to talk about some pragmatic reasons to hesitate before jettisoning the language of punctual consent for the decentered versions of consent in play in deliberative democratic theory. Here I m moving from the play of concepts and ideals to choices on the ground in this case, that ground being struggles and negotiations between indigenous peoples and settler states. A first set of pragmatic concerns derive from the norm, in deliberative democratic theory, that no principle or settlement or distribution is immune to deliberative challenge. But both aboriginal and non-aboriginal peoples have understandings and commitments that they re not willing to put up for grabs the norm of aboriginal sovereignty, say, or the authority of the Canadian constitution, or determinate boundaries around social groups and their membership. Or maybe it s not that these understandings are considered beyond justification or debate; rather, the concern would be to understand the rules of justification and debate before stepping into the game. So it might be that aboriginal and non-aboriginal parties would be unwilling to subject fundamental claims and understandings to deliberative validation unless the rules of the game were much, much 5
clearer than I ve been able to make them today, or than any deliberative democrat has so far made them. A second set of concerns the most compelling one, to my eyes is around putting oneself at the mercy of deliberative procedures (however well designed) in a legal and political context rife with inequalities of power. However much one may admire the deliberative ideal, the terrain of negotiation between aboriginal peoples and settler states doesn t permit the bracketing of power relations for deliberative purposes. And so participation in unconstrained deliberation remains tremendously risky, and will perhaps make sense only in contexts where existing modes of resolution (courts, legislative decisions, civil disobedience) are especially unpromising. A third set of concerns has to do with deliberative democracy s highly demanding model of reason-giving. To be in political relationship, on this model, is to articulate one s understandings, values, and perspectives insofar as these appear relevant to an issue in question. This is, in effect, a demand for deep and continuing openness to the other and relationship with the other. I m not sure how palatable this might seem to indigenous groups that feel plenty scrutinized already; there might be a preference for a model of legitimate decision-making that allows non-engagement, or carefully delineated engagement, over a continual demand for explanation and self-disclosure, however symmetrical this demand might come to be. Notwithstanding these reasons for caution, I think that deliberative democratic theory has a lot to offer aboriginal/settler relations: As a regulative ideal with which to evaluate the justice of relationships and processes of the past, and design just procedures for the future; As a gesture at grounds for solidarity and civic friendship across deep differences and complex boundaries; As a way of breaking the hold of pictures of consent, legitimacy, and sovereignty that constrain our political imaginations, however much they may (or may not) serve our immediate purposes. 6